BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 2061|
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CONSENT
Bill No: SB 2061
Author: Morrow (R)
Amended: 4/29/02
Vote: 21
SENATE JUDICIARY COMMITTEE : 7-0, 5/7/02
AYES: Escutia, Ackerman, Haynes, Kuehl, O'Connell, Peace,
Sher
SUBJECT : Privilege: electronic communications
SOURCE : California Law Revision Commission
DIGEST : This bill provides that (1) a privileged
communication does not lose its privileged status simply
because it is transmitted electronically, and (2) the
statutory presumption of confidentiality and statutory
waiver requirements apply to newly created privileges.
ANALYSIS : Existing law provides that a lawyer-client
communication is not deemed lacking in confidentiality
solely because it was transmitted by facsimile, cellular
telephone, or other electronic means.
This bill would delete this provision, and instead would
provide that a communication between parties to any
privileged relationship does not lose its privileged
character for the sole reason that it is communicated by
electronic means or because persons involved in the
delivery, facilitation, or storage of electronic
communication may have access to the content of the
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communication.
This bill would define "electronic" as having the meaning
provided in Section 1633.2 of the Civil Code (which is
"relating to technology having electrical, digital,
magnetic, wireless, optical, electromagnetic, or similar
capabilities").
Existing law provides that communications made in the
context of specified relationships (husband-wife,
lawyer-client, physician-patient, clergy member-penitent,
sexual assault victim-counselor) are privileged, entitling
the holder of the privilege to refuse to disclose, and to
prevent another from disclosing, the communication.
Existing law further provides that the privilege is waived
if the holder of the privilege, without coercion, has
disclosed or consented to the disclosure of all or a
significant part of the communication at issue, or fails to
claim the privilege in any proceeding in which the holder
has the legal standing and opportunity to claim it.
Existing law further provides that the privilege is not
waived when the disclosure is reasonably necessary for the
accomplishment of the purpose for which the physician,
psychotherapist, lawyer, or sexual assault counselor was
consulted.
Existing law recently has extended the right to claim a
privilege against disclosure to communications between
domestic violence victims and counselors.
This bill would add the domestic violence victim-counselor
privilege to those listed in Section 912, governing waiver
of the privilege.
Existing law provides that whenever a privilege is claimed
on the ground that the communication at issue was made in
confidence in the course of the husband-wife,
lawyer-client, physician-patient, psychotherapist-patient,
or clergyman-penitent relationship, the communication is
presumed to be confidential and the opponent of the claim
of privilege has the burden of proof to establish that
communication was not confidential.
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This bill would provide that the presumption of
confidentiality also extends to communications claimed
under the sexual assault victim-counselor and domestic
violence victim-counselor relationship.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/9/02)
California Law Revision Commission (source)
ARGUMENTS IN SUPPORT : Current law addresses the
electronic transmission of privileged communications only
in the context of the lawyer-client relationship. Section
952 of the Evidence Code provides that a lawyer-client
communication "is not deemed lacking in confidentiality
solely because the communication is transmitted by
facsimile, cellular telephone, or other electronic means
between the client and his or her lawyer."
The sponsor notes that the narrow focus of this provision
may be read to deny the confidentiality of other privileged
communications made by electronic means. Further, the
provision's reference to specified technologies is overly
specific, easily outdated, and makes no reference to the
fact that electronic storage mechanisms may grant storage
providers with access to electronic communications,
threatening their privileged character.
To address this problem, this bill would delete the
referenced provision of Section 952 and instead provide
that no privileged communication shall lose its privileged
character solely because it is communicated by "electronic
means" (using the Civil Code's broad and flexible
definition of "electronic"), or because persons involved in
the delivery or storage of the communication may have
access to the communication.
The sponsor's review of the Evidence Code sections relating
to privileged communications also revealed that some
provisions had not been updated to reflect the most
recently created privileges between sexual assault and
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domestic violence victims and their counselors. This bill
would update those sections to include these newly created
privileges.
RJG:jk 5/9/02 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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